Recently, a number of European IP law professors (and certain lawyers) signed a motion against the EU patent package. The motion mentions 29 signatories of which 13 originate from Belgium. The other signatories are located in France (5), Italy (4), UK (2), Suisse (1), Portugal (1), the Netherlands (1), Sweden (1) and Spain (1). The motion also mentions 12 “supporters” originating from the same member states and from Germany and Denmark.

The main argument of the motion is that the EU patent package would have “stripped” the Union of one of its powers. The competence of the EU to establish measures for the creation of European intellectual property rights to provide uniform protection [...]

On 24 March, 2015, the Enlarged Board of Appeal of the EPO, the final judicial arbiter of the interpretation of the European Patent Convention, issued Decision G 3/14 addressing the question of when, and to what extent, clarity objections could be raised by a party challenging the validity of a patent through the EPO’s Opposition procedure. The Decision concludes that granted claims, including combinations of independent claims and their proper dependent claims, cannot be formally challenged for a lack of clarity. Rather, a formal objection of lack of clarity can only be made when the substance of a granted claim, dependent or independent, is changed by an amendment to that claim, and then [...]

At the end of January, we reported the Warner-Lambert v Actavis decision of 21 January 2015, in which Arnold J refused to grant Warner-Lambert interim relief in relation to an apprehension of patent infringement by Actavis of Warner-Lambert’s patent comprising Swiss-form claims directed to the use of pregabalin in the preparation of a medicament for the treatment of pain. The apprehended patent infringement pertained to Actavis’ generic pregabalin medicine. Actavis had carved-out pain indications from the label for its medicine but it was nevertheless foreseeable that some of these medicines would be dispensed and used for pain in the UK.

The European business sector and the European Commission have voiced concern about the level of the renewal fees for the Unitary Patent, as proposed by the European Patent Office (EPO).

The two EPO proposals for the fee level, often designated as the ‘Top 4 model’ and ‘Top 5 model’ have been discussed on the Kluwer Patent Blog here.

Earlier this month, a group of large European companies sent a joint letter to Ministers and Heads of Government of European countries. In the letter, which is in the possession of Kluwer IP Law, the companies (Philips, Scania, Ericsson, Nokia, Alfa Laval, Air Liquide, Danfoss, Storaenso and NXP) state:

The judgement “Schleifprodukt” rendered by the German Federal Court of Justice on 25 November 2014 could be seen as a step towards harmonisation with the EPO because the court carried out the test for the admissibility of claim amendments by assessing whether the feature combination of the amended claim in its entirety represents a technical teaching which is identifiable from the original application as being suitable for achieving the effects of the invention.

Under U.S. patent laws, the 20-year term of a patent can be extended if the USPTO fails to meet certain timeliness benchmarks during the patent examination process. The statute provides for Patent Term Adjustment (PTA) equal to the number of days of USPTO delay, less the number of days of applicant delay. The statute defines taking more than three months to respond as one type of applicant delay, and delegates authority to the USPTO to define other circumstances that amount to applicant delay, which the USPTO has done in 37 CFR § 1.704. While many of the USPTO’s circumstances are not surprising, one category in particular can result in PTA deductions for actions made to advance prosecution. [...]

Affiliates

Book Spotlight

Thomas Cottier, Pierre Veron

Widely used since its first edition, this incomparable practical resource for lawyers presents an article-by-article commentary and analysis on the instruments of intellectual property law, both European and international,applicable in Europe. This new edition is brought up to date with the continuing harmonization of rules, practice, and procedure in the field.